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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Tuesday, June 30, 2015

This guy was beaten up at the Suffolk County Jail by correction officers who objected when plaintiff exchanged pleasantries with another inmate who was convicted of killing a police officer. His case against the officers was dismissed in the district court because plaintiff did not exhaust his administrative remedies at the jail before filing suit. The Court of Appeals reinstates the case.

The case is Hubbs v. Suffolk County Sheriff's Department, decided on June 2. The Prison Litigation Reform Act requires inmates to file a grievance with the jail over their prison conditions before they can sue the officers in court. The idea is that the jail might resolve the problem before the case reaches court or at least make some preliminary findings that might assist the court in deciding the case. An inmate's failure to comply with the PLRA is the reason many of these lawsuits never see the light of day. This one is allowed to proceed.

Hubbs did not file a grievance. He argues that he did not have to because the inmate handbook says the jail does not entertain grievances about matters that fall outside the warden's control.The handbook does not entitle the County dismissal. It is not clear whether what happened to Hubbs fell within the warden's control. The County also cites an affidavit from a jail official that said a grievance "concerning an act or occurrence that took place while the inmate was detained in the County Court Holding facility would be accepted by the grievance coordinator and a determination would be made regarding what action should be taken to resolve and rectify the matter." The Court of Appeals says this affidavit is vague and "does not address whether any remedies were in fact available for such a grievance."

After scrutinizing the affidavit in other ways and determining that it just doesn't cut the mustard, the Court of Appeals (Calabresi, Cabranes and Raggi) says "on the record before us, no administrative remedies were available to [plaintiff], and there was thus nothing for him to exhaust. Hubbs is therefore free to proceed with the merits of his suit in federal court."

Monday, June 29, 2015

The Fourth Amendment protects you from police misconduct. But not every misconduct case reaches a jury. The officers can assert qualified immunity, which means they are immune from suit if they acted reasonably under the circumstances. In this case, the Supreme Court grants police officers qualified immunity even though they used force against the plaintiff, a disabled woman with schizoaffective disorder.

The case is City of San Francisco v. Sheehan, decided on May 18. After Sheehan behaved erratically at a group home and claimed to have a knife, the police showed up. Sheehan threatened them, the officers retreated and Sheehan shut the door to her room. The officers then worried that Sheehan might have more weapons in her room and might escape out the window. The officers reentered the room and pepper sprayed Sheehan. That did not subdue Sheehan, so an officer shot her twice, but she did not collapse. So another officer fired multiple shots and someone else kicked the knife from her hand. Although Sheehan was disabled, the officers did not consider whether to give her a reasonable accommodation rather than use force.The Court says the officers acted appropriately under the circumstances;
this woman acted erratically and threatened to use a knife. But that does not fully answer the question here: what about any accommodations?

The Ninth Circuit said the officers could have accommodated plaintiff by "respecting her comfort zone, engaging in non-threatening communications and using the passage of time to defuse the situation rather than precipitating a deadly confrontation." The Supreme Court is not buying it. The Americans with Disabilities Act entitles you to a reasonable accommodation if you have a disability, but remember what I said about qualified immunity. When the police have to act fast, they cannot always ponder the situation even if 20/20 hindsight suggests they should have. And if the law is not clearly established on the factual issues presented to the officers, they cannot be held liable for guessing wrong about what a court will say about it later. Cases in this area are not clear enough to put the officers on notice that they had to consider alternative ways to deal with Sheehan in light of her disability, rather than using force.

Friday, June 26, 2015

In an effort to curtail inmate litigation, Congress two decades ago passed the Prison Litigation Reform Act, which among other things limits when destitute inmates can seek "poor persons' status" in order to waive their filing fees. Three frivolous lawsuits and say goodbye to that entitlement. This Supreme Court asks What is a strike?

The case is Coleman v. Tollefson, decided on May 18. In Forma Pauperis is the official designation for poor persons' status. Inmates can file lawsuits over their prison conditions, but three frivolous cases is the limit if want to waive the filing fee. In this case, the inmates brought three such lawsuits. Strike three was on appeal when he tried to file another case without paying the filing fee. He argued that since strike three was on appeal, it did not yet count as a strike. After all, the case is on appeal and hope springs eternal, right?

Wrong, a unanimous Court says. A dismissal does not mean an affirmed dismissal. "The linguistic term 'dismiss,' taken alone, does not normally include subsequent appellate activity." And the PLRA "describes dismissal as an action taken by a single court, not as a sequence of events involving multiple courts." And, Justice Breyer says, "Our literal reading of the 'three strikes' provision also is supported by the way in which the law ordinarily treats trial court judgments. Unless a court issues a stay, a trial court's judgment (say, dismissing a case), normally takes effect despite a pending appeal. And a judgment's preclusive effect is generally immediate, notwithstanding any appeal."

But what if the strike three appeal is actually successful? The Court addresses that possibility, noting it is a remote possibility:

We recognize that our interpretation of the statute may create a different risk: An erroneous trial court dismissal might wrongly deprive a prisoner of in forma pauperis status with respect to lawsuits filed after a dismissal but before its reversal on appeal. But that risk does not seem great. For one thing, the Solicitor General informs us that he has been able to identify only two instances in which a Court of Appeals has reversed a District Court’s issuance of a third strike. For another, where a court of appeals reverses a third strike, in some instances the prisoner will be able to refile his or her lawsuit after the reversal, seeking in forma pauperis status at that time. Further, if the statute of limitations governing that lawsuit has run out before the court of appeals reverses the third strike, the Solicitor General assures us that prisoners will find relief in Federal Rule of Civil Procedure 60(b). According to the Solicitor General, a prisoner may move to reopen his or her interim lawsuits (reinstating the cases as of the dates originally filed) and may then seek in forma pauperis status anew. In any event, we believe our interpretation of the statute hews more closely to its meaning and objective than does Coleman’s alternative.

Thursday, June 25, 2015

If you represent public employees in discrimination cases, one hurdle to victory is any findings of misconduct against him at a departmental due process hearing. If the hearing officer says plaintiff did something wrong, can he still claim he was the victim of discrimination? Sometimes he can.

The case is Leon v. City of New York, a summary order decided on May 22. Following her termination, Leon asserted claims for discrimination and retaliation. But at a Section 3020-a hearing, it was found that Leon did something wrong at work. What did she do wrong? The decision does not say. But whatever she did, the district court held it prevented her from suing for discriminatory and retaliatory discharge because it undercut her prima facie case.

There is some surface logic to the district court's ruling. To make out a prima facie case of discrimination, plaintiff has to show she was qualified for the job but was fired under circumstances creating an inference of discrimination. If a neutral hearing officer says plaintiff did something wrong at work, then how can she claim discrimination?

The law does not always reflect surface logic. You can still be the victim of discrimination if you screwed up at work. Someone else may have engaged in the same misconduct without termination. Being singled out is prima facie evidence of discrimination. The hearing may have been fair, but it may not have addressed the issue of whether plaintiff was fired for discriminatory reasons. Applying settled collateral estoppel rules, the Court of Appeals (Parker, Kearse and Wesley) says:

There is no indication that the Section 3020-a hearing addressed, much less “actually decided,” whether the charges leading to Leon’s termination were driven, even in part, by discriminatory or retaliatory intent. The court’s error thus stems from the faulty assumption that termination for cause necessarily precludes the possibility of termination motivated by unlawful animus. “[T]he hearing officer’s determination that [the plaintiff] had engaged in the charged conduct, and that these violations called for h[er] termination, does not preclude a jury from later finding that [the plaintiff] was also terminated at least in part because of [discriminatory reasons]. The plaintiff could be successful on the [discrimination or retaliation] claims even if the jury were to accept that there were legitimate reasons for terminating h[er], too.” Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 47 (2d Cir. 2014).

Tuesday, June 23, 2015

This sexual harassment case has enough evidence for a trial even though the district court dismissed it on a motion for summary judgment. The issues are so clear-cut that the Court of Appeals does not issue a full opinion but instead hands down a summary reversal.

Hand alleges that her "supervisor felt her breast and repeatedly invaded her personal space." That's enough to win at trial, the Court of Appeals (Lohier, Winter and Carney) says. We know that a single incident can give rise to a hostile work environment case if that incident is severe. The Second Circuit ruling tells us very little about what actually happened in the workplace. Here is how the district court summarized her claim:

Plaintiff’s hostile work environment claim is based on the allegations that (1) plaintiff was punched in the back when she fought with her coworker over an open window and subsequently suspended plaintiff without pay in 2009, (2) one of defendant’s employees felt plaintiff’s breast and often pulled up a chair directly beside plaintiff, (3) defendant transferred plaintiff to 701 Euclid Avenue in March of 2009, (4) defendant incorrectly marked plaintiff AWOL while she was on medical leave between April 16–17, 2009, and (5) defendant used plaintiff’s likeness in an “About HPD” pamphlet without her permission in November of 2009. Plaintiff’s failure to establish that these allegations occurred because of her race or sex is fatal to her hostile work environment claim.

For one reason or another, the district court said these incidents were not enough to support the claim. As for the breast-touching, the district court said,

[P]laintiff cannot establish a hostile work environment based on the lone incident where an HPD employee felt her breast because a reasonable employee would not find the alleged harassment sufficiently hostile or abusive to alter the conditions of her workplace. See Mormol v. Costco Wholesale Corp., 364 F.3d 54, 58–59 (2d Cir. 2004) (finding that although a supervisor repeatedly demanded sex from an employee, threatened to fire her, made her return early from vacation, and cut her work hours, the incidents of harassment “were few and occurred over a short span of time” and thus “not sufficiently severe to overcome its lack of pervasiveness”).

The Court of Appeals disagrees, although it notes that a co-worker had "repeatedly invaded" plaintiff's personal space. Although the district court said that "Plaintiff’s allegations consist of isolated incidents occurring in multiple HPD offices with different perpetrators," the Second Circuit appears to disagree.

Monday, June 22, 2015

The confederate flag is in the news, because a racist in South Carolina killed innocent black people in a church. The State of South Carolina still flies the confederate flag over the State House. At the same time, the Supreme Court ruled that the State of Texas could prevent motorists from using a license plate that celebrates the Sons of Confederate Veterans.

License plates have been the subject of Supreme Court rulings before. In 1977, the Court said the state cannot force people to display slogans on their license plates. In that case, Wooley v. Maynard, the Court said a New Hampshire motorist could block out "Live Free or Die." This case asks the opposite question, can motorists force the state to display certain slogans? They cannot.

The Court says license plates constitute government speech, not citizen speech. The government is able to control the message it sends out to the world without having to entertain contrary opinions. While people like to advertise their personalities to the world through their license plates, the plates are still government property. As the Court says, the history of license plates shows that they have long communicated state messages ("America's Dairyland" and "Keep Florida Green"). Texas license plates are often closely identified in the public mind with the state, the Court adds, as each plate is a "government article serving the governmental purpose of vehicle registration and identification." The plates "are essentially government ID's." And the state has maintained direct control over the messages conveyed on its specialty plates. All this adds up to government speech. As the Court has held in years past that the government can control its own speech, the Confederate people lose the case.

Thursday, June 18, 2015

Many public employee First Amendment cases these days turn on the question whether the plaintiff spoke as a citizen or as a public employee in speaking out on a matter of public concern. Citizen speech is protected. Public employee speech is not, under Garcetti v. Ceballos, the Supreme Court's 2006 ruling that made it more difficult for plaintiffs to win their cases. This case, though, turns on whether plaintiff spoke on a matter of public concern.

The case is Gordon v. City of New York, a summary order decided on May 21. Gordon and his co-plaintiff, Murawski, worked as EMT's for New York City when a City police officer assaulted them. After the reported the assault, the offending officer committed suicide, and other police officers harassed plaintiffs incessantly. The district court dismissed their case under Rule 12. The Court of Appeals (Straub, Parker and Carney) affirms.

Defendants do not dispute that plaintiffs spoke as citizens in reporting an assault by a police officer. So they survive that hurdle. But defendants challenge whether plaintiffs spoke on a matter of public concern. They did not. Even under Rule 12, where we deem all factual allegations to be true, plaintiffs did not allege anything that would concern the public at large. The Court of Appeals reasons:

Here, the complaint contains no plausible allegation that Gordon’s statement to the police was anything more than a simple, individualized assault report. As averred in the complaint, Gordon “reported to the police that Rodriguez [had] attacked [plaintiffs],” and “summoned police to assist [Murawski]” after the assault. Although the complaint includes an allegation that the FDNY “has a policy and custom of covering up workplace violence,” it fails to plead facts suggesting that the police report itself was an attempt to expose this policy. Indeed, the “content, form, and context” of Gordon’s police report—a request for help in the immediate aftermath of an attack—lead to the conclusion that the report was “personal in nature and generally related to [Gordon’s] own situation,” not an effort “to correct allegedly unlawful practices or bring them to public attention.” Huth v. Haslun, 598 F.3d 70, 74–75 (2d Cir. 2010).

Wednesday, June 17, 2015

You don't see a lot of Fair Housing Act cases in the Court of Appeals This lengthy opinion involves a real estate agent who tried to talk people out of renting a house because their child was disabled.

The case is Rodriguez v. Village Green Realty, decided on June 2. Plaintiffs were renting a house in Saugerties, N.Y., near my neck of the woods. When the house was put on the market, they had the option to continue renting there. Plaintiff's child then suffered two grand-mal seizures. The realtor sent text messages suggesting the buyer was "very concerned about continuing your lease with you Childs [sic] medical situation and will probably not want to rent to you. ... The new owner has decided not to continue to rent to you because your daughter should be in a more convenient location to medical treatment." In fact, the buyer did not say this to the realtor; the realtor fabricated all of this. The house sale fell through, but plaintiffs began looking for new housing when it became "very apparent that they were not wanted."

First things first. Electrornic discovery is the latest craze, and this case tells us why. These damaging text messages from the realtor were never written in memo form. This is why parties have to save their ESI (electronically-stored information) and electronic devices that store them.

While the district court dismissed the case on summary judgment, the Court of Appeals (Livingston, Droney and Nathan [D.J.]) reinstates the case. First, the FHA prohibits housing discrimination based on disability. The Court of Appeals finds the child is disabled Epilepsy substantially limits the major life activity of learning. The child's Autism Spectrum Disorder is also covered under the Act because it substantially impacts social interaction. Along the way, citing cases from other Circuits, the Second Circuit says that medical evidence is not necessary to to show an impairment is substantially limiting. Plaintiff's non-medical evidence is enough to defeat summary judgment.

The Court also explores whether the medical records that plaintiffs did submit were admissible. They were, even though the records were not authenticated, as "their appearance, contents, and substance are what one would expect of such records and support plaintiffs' claim that they are what they appear to be" (This reasoning will be of interest to litigators who fight over authenticity and admissibility issues). The daughter's special education services further establish that she is disabled under the FHA. At a minimum, the realtor perceived the daughter as disabled, and that is enough under the Act.

Plaintiffs also prevail on appeal because the jury could find that the realtor represented to them that the housing was not available because of their daughter's disability. That is apparent from the text messages. A reasonable person, viewing the text messages, would believe the realtor did not want to rent the house to someone with the daughter's limitations.

Tuesday, June 16, 2015

Mistaken identity. Who doesn't worry about being in the wrong place at the wrong time, especially if you are the wrong person? It happened to this guy.

The case is United States v. Watson, decided on May 21. Watson was approached by police officers who were looking for Chauncy Butler, a robbery suspect. The officer testified that Watson looked like Butler, so they searched him and found 27 bags of crack on his person. The district court granted Watson's motion to suppress on the basis that the officers did not reasonably believe that Watson was Butler, and the Court of Appeals (Calabresi, Hall and Rakoff [D.J.]) affirms. Watson is a free man.

The suppression hearing established that Butler was a black male, 5'10" to 6 feet tall, 19 years old, black hair and 155 to 180 pounds. Watson is six feet two inches tall, weighed 180 pounds and was 25 years old. At the hearing, Judge Scheindlin credited the testimony of Watson and his companion over that of the police officers. She ruled from the bench as follows:

Vaccaro testified that he saw Watson clearly and still believed that Watson was Butler. Although Vaccaro previously arrested Butler and spent time with him, he admitted that he was not sure whether or not Watson was Butler until after he ran Watson's fingerprints because “on a yearly basis [he] arrests or comes into contact with over a hundred individuals.” I do not find this testimony credible. Butler and Watson do not look [a]like. This is evident from a comparison of the photographs of Butler and Watson, as well as my observation of Watson at the hearing. In addition to their different facial features, skin tone, height, and weight, Watson is over five years older than Butler. Vaccaro’s generic description of the similarities between Watson and Butler undermines the contention that he reasonably believed them to be the same person.

The government argues that it would have been illogical for the officers to ask for identification prior to searching Watson, but I reach the opposite conclusion: It would have been illogical and imprudent not to ask for identification. While Vaccaro’s belief that Watson was Butler might have been the basis for the stop, it was not the basis for the search.

The trial court's factual findings are not clearly erroneous. Judge Scheindlin did not believe the officer's testimony that he could not tell the difference between Watson and Butler. She also held that no reasonable officer could have so believed at the time of the search. The Court of Appeals says, "This legal conclusion was based on the factual finding that Watson and Butler simply 'do not look alike,'" and these two men in fact did not look alike. Factual findings are for the trial courts, not the appellate courts. The Government loses the appeal.

Monday, June 15, 2015

The Second Circuit does not often reverse criminal convictions outright, but it does so here, ruling that the trial court denied the defendant a new trial when it allowed the jury to hear that the defendant had threatened to kill a government informant,

The case is United States v. Morgan, decided on May 19. Morgan was on trial for drug-related offenses, including possession of a firearm in furtherance of a drug-trafficking crime. Morgan's former girlfriend, Williams, testified at trial that Morgan sent her letters from prison seeking her assistance in killing the informant. Morgan's lawyer objected, and the trial court agreed this testimony was unfairly prejudicial to Morgan. In the end, the trial court did not give the jury a limiting instruction. The Court thought such an instruction would raise a "red flag" for the jury, stating, "there's no charge in this case in the indictment about attempting murder or a murder. This is about drugs and guns, as they jury knows from the beginning. Beyond that, I don't think I can do much. That might be worse for you than not saying anything."

New trial for Morgan. While threats can be relevant to prove guilty knowledge, "the alleged threats here bore no relation to the offenses for which Morgan was being tried. Moreover, the death threat evidence admitted during Williams's direct examination had substantial capacity ... to lure the jury into declaring guilt on a ground different from proof specific to the offense charged." Moreover, no limiting instruction would have mitigated the prejudicial effect of the death threat evidence. The evidence was simply that powerful.

Wednesday, June 10, 2015

You don't see too many civil cases for damages under the Omnibus Crime Control and Safe Streets Act of 1968, which prohibits the unauthorized wiretapping of phone calls. Plaintiff brought this action which the government tried to dismiss under Iqbal and on qualified immunity grounds. The district court denied the motion. The Court of Appeals is not so sure.

The case is Drimal v. Makol, decided on May 15. Law enforcement tapped plaintiff's phone to listen in on her husband's conversations, as he was the subject of a white-collar fraud inquiry. Here's the problem: some wiretapping is legal if the police have probable cause. But the police must minimize the nature of the wiretapping to ensure they are not listening in on calls unrelated to the investigation. Looming over this case is the Iqbal pleading standard set forth by the Supreme Court in 2009, which requires parties to plead non-conclusory factual allegations and not simply rely on legal conclusions.

The Court of Appeals hears the case because the district court denied defendants' motion for qualified immunity, and immunity questions can be appealed right away. The Circuit says the district court got it wrong under Iqbal. Plaintiff did not plead that the police failed to properly minimize the wiretapping. The Court of Appeals says:

In assessing the complaint, the district court read the minimization requirement into the plaintiff’s allegations that defendants “unlawfully” listened to her calls and required no greater specificity as to the facts alleged. However, a simple allegation that defendants behaved “unlawfully,” unsupported by any factual detail, is precisely the type of legal conclusion that a court is not bound to accept as true on a motion to dismiss, and the district court erred in doing so here.

If the plaintiff refiles her complaint on remand, the district court must consider qualified immunity. The Court of Appeals provides guidance on this issue. Qualified immunity allows municipal officials to avoid trial if they acted reasonably under the circumstances. The Court notes that "The government argues on behalf of all but one defendant that a per se “two‐minute rule” derived from United States v. Bynum — treating calls monitored for less than two minutes as properly minimized—entitles agents to immunity for interceptions that did not exceed that duration." It adds, "While our reasoning in Bynum, which didn’t pertain to any privileged communications, can be read to suggest a presumption that calls less than two minutes long need not be minimized, this is not a fixed rule for every case: whether the two‐minute presumption applies is a fact‐specific determination." In the end, "The two‐minute presumption we applied in Bynum thus does not automatically shield defendants against the failures to minimize calls under two minutes that the putative amended complaint is likely to allege."

Tuesday, June 9, 2015

The Court of Appeals takes a look at the Americans with Disabilities Act in a case against IBM, holding that a hearing impaired employee received a reasonable accommodation from his employer, including transcripts of intranet videos and access to American Sign Language interpreters for intranet content and live meetings,

The case is Noll v. International Business Machines, decided on May 21. Noll worked in Poughkeepsie, N.Y., but IBM is a huge corporation for which internal communication were broadcast over a company-wide intranet. Noll asked for captioning of certain intranet videos or transcripts of audio files. Instead, as noted above, IBM gave him transcripts and access to ASL interpreters. Noll said these alternatives were not good enough it was "confusing and tiring" to look back and forth between the video and the ASL interpreter. Also, it sometimes took five days or longer for transcripts to be made available to Noll, and links to the transcripts were sometimes broken.

The question here is not whether IBM ignored Noll's requests. Instead, we ask if IBM's accommodations were reasonable as a matter of law. This case was dismissed on a motion for summary judgment, which means the trial court said there was no factual issue for the jury and the case could be decided in favor of IBM on a cold record. Over Judge Sack's dissent, the Court of Appeals (Jacobs and Droney) says the accommodations were reasonable.

As the Second Circuit notes, "A reasonable accommodation is one that 'enables an individual with a disability who is qualified to perform the essential functions of that position ... or to enjoy equal benefits and privileges of employment.'" This derives from the extensive regulations interpreting the ADA. While Noll argues that immediate access to all video and audio postings in the intranet is a benefit or privilege of employment, the real question is whether the accommodations were effective. While access to transcripts were subject to a five day delays, "there is no dispute that the ASL interpreters were available to Noll whenever he wished to view a video or access an audio file, and that they translated in real-time."

In addition, while Noll says the ASL interpreters were not as effective as captioning and that it was tiresome to watch the sign language interpreter and the screen, that objection does not entitle him to a jury trial. "This disadvantage does not render interpretive services ineffective. A person who is deaf necessarily receives auditory information from other senses (principally sight); so it can be expected that many accommodations of deafness -- ASL interpretive services as well as captioning -- will tax visual attention to some degree. An accommodation for deafness therefore cannot be rendered ineffective by the need to divide visual attention, without more."

Friday, June 5, 2015

The Supreme Court rules for the first time that Title VII of the Civil Rights Act of 1964 prevents an employer from declining to hire someone to avoid having to accommodate her religious practices.

The case is EEOC v. Abercrombie & Fitch Stores, Inc., decided on June 1. Plaintiff wanted to work for this retailer. She is a Muslim who wore a headscarf. An assistant manager said plaintiff was qualified for the position but she was concerned the headscarf would conflict with the store's dress code. While the assistant manager told the store manager that she believed plaintiff wore it for religious reasons, the store manager said plaintiff could not have the job because all head wear, religious and otherwise, violated the dress code.

The Court rules in plaintiff's favor. It says the employer does not need "actual knowledge" of the applicant's need for a religious accommodation. "An applicant need only show that his need for an accommodation was a motivating factor in the employer's decision." As Justice Scalia explains, "an individual's actual religious practice may not be a motivating factor in failing to hire, in refusing to hire, and so on." Unlike the Americans with Disabilities Act, which defines discrimination to include an employer's failure to make "reasonable accommodations to the known physical or mental limitations,” Title VII does not impose a knowledge requirement. Instead, the Court says, Title VII prohibits certain motives.

Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.

Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.

Wednesday, June 3, 2015

This case allows us once again to marvel at DNA evidence. It started in 1985, when a girl was raped and killed on Long Island. Three men were implicated in this crime; they each incriminated themselves during the investigation, and at least two of them did so in writing, including Kogut. They were convicted in criminal court and sentenced to bread and water for over 30 years in prison, but DNA testing led the DA's office to agree to vacate the convictions. Kogut was retried and then acquitted. His lawsuit against Nassau County presents issues surrounding the fairness of allowing the jury to hear the consolidated claims raised by the two other defendants at the same civil trial.

The case is Kogut v. County of Nassau, decided on May 14. The three defendants became plaintiffs, suing the County for civil rights violations surrounding their arrest and detention. Among other things, plaintiffs claimed the confessions were coerced. The district court ordered that their separate cases be tried together. At trial, the jury learned about the statements made by the two other plaintiffs that implicated Kogut. All lost at the civil trial.

Did Kogut get a fair trial? "On appeal, Kogut contends principally that the evidence relating to statements attributed to Restivo or Halstead was not admissible against him at his criminal trials, and that the district court therefore erred (a) in denying his pretrial motion for separate trials and (b) in denying his posttrial Rule 59 motion for a new trial." District courts have discretionary authority to consolidate cases for trial. That gives Kogut an uphill battle on appeal.

And an uphill battle it is. The Court of Appeals (Kearse, Straub and Wesley) says plaintiff's first argument (that the district court gave no consideration to his interests in ruling on consolidation) is frivolous. More generally, the Second Circuit says that some of the arguments that Kogut raises on appeal were not asserted in the district court, he must satisfy the "plain error" standard of review, which in plain English means the trial was fundamentally unfair. He cannot meet that standard. He argues that incriminating statements that the other criminal defendants made violated his right to a fair trial, but those statements were not the only evidence that the police defendants had to prove Kogut's guilt, and Kogut did give a confession that the jury in the civil trial could have taken into account in finding probable cause to arrest him (even if the confession was coerced). The statements from the other criminal defendants were also relevant at the civil trial to prove the municipal defendants lacked any malice in arresting Kogut.

What we learn from this case is that some confessions are not real confessions, and that without DNA evidence, some people would still be in jail. We also learn that even a false conviction does not always result in civil liability against the police.

Monday, June 1, 2015

Under Rule 68 of the Federal Rules of Civil Procedure, if a defendant serves the plaintiff with a Rule 68 Offer of Judgment, plaintiff has a short time (14 days) to decide whether to accept it. That limited window can induce panic because the consequences of declining the Rule 68 offer can be quite serious, and the plain language of the Rule does not tell us what it really means. The courts are still interpreting the meaning of Rule 68.

The case is Tanasi v. New Alliance Bank, decided on May 14. Under Rule 68, if the defendant serves the Offer on plaintiff in the amount of $20,000, and plaintiff declines that Offer and wins only $10,000 at trial, then Rule 68 says plaintiff must pay defendant's costs incurred after the Offer was made. This is the penalty for guessing wrong about the value of the case. (This does not mean the plaintiff pays defendant's attorneys fees, but it does mean plaintiff gets no attorneys' fees after the date the Offer was made).

In this case, plaintiff sued the bank for improper overdraft fees. The bank served an Offer of Judgment that exceeded the amount of plaintiff's damages. Plaintiff declined the Offer. The district court dismissed the case as moot, as the Offer would have given plaintiff all the money to which he was entitled. The Court of Appeals (Katzmann, Walker and Chin) reverses, further deepening an inter-Circuit split on this issue.

While prior Second Circuit case law has not been clear on this issue, it is clear now. "[A] rejected settlement offer under Rule 68, by itself, cannot render moot a case. If the parties agree that a judgment should be entered, or a defendant unconditionally surrenders ... such that only the plaintiff's obstinacy or madness prevents her from accepting total victory, then the district court may, in its discretion enter judgment against the defendant. Absent such agreement or obstinacy, the district court should not enter judgment against the plaintiff; nor, of course, should judgment be entered if it does not provide complete relief."